59 So. 173 | Ala. | 1912
Lead Opinion
The bill in this case was filed for the purpose of preventing by injunction the enforcement of an assessment for local improvement. The proceeding for the assessment was begun by the city of Graymont. Pending the improvement, that city became incorporated into the city of Birmingham which thereby succeeded to all its powers, rights, and liabilities, and thereupon carried the work to completion. In his bill complainant avers that the. proceedings, by which the defendant and its predecessor, the city of Graymont, sought to fasten a lien upon his property, failed to folIoav the statute made for such cases, and were defective
An outline of the statute authorizing improvements of this character by municipal corporations, the cost of which may be assessed against the abutting property, will make sufficiently plain the nature and extent of the departure from statutory requirement of which the appellee complained in the court below. The entire statute is to be found in sections 1359-1420 of the Code of 1907. Sections requiring attention in this connection may be epitomized as follows: There must first be an ordinance or resolution determining the execution of the work (but only tentatively, as will appear), describing its nature and extent, the general character of the materials to be used, the street to be improved, and the location and terminal points of the improvement. The resolution must direct full details, drawings, plans, specifications, and surveys of the work, and estimates of the cost be prepared, or plans already prepared may be adopted. — Code, § 1381. Details, specifications, etc., and estimates must be placed on file where property owners may examine same, and the ordinance or resolution shall appoint a time, not less than two weeks after the first publication thereof, to hear objections to the improvement, the manner of making the same, or the character of the material to be used. Section 1362. The ordinance or resolution must be published once a Aveek for two weeks in some newspaper published in the city or town, or, if there be no such newspaper, in a newspaper of general circulation therein, or by posting for two weeks in three public places therein. Section 1363. At the meeting property owners shall be heard to object, and such objections must be considered,
Let it be noted at this point that there is no averment that there was any defect or default in the notice required' by sections 1377 and 1379 in respect to the preparation of the assessment roll and the time and place at which objections and defenses would be heard and detexmiined preliminary to the final adjudication of the assessment against each parcel of ‘property and the amount thereof, nor is it complained that the amount assessed against complainant’s property is in excess of the benefits derived froxxx the improvement, nor is there any averment of fraud in the proceedings. Nor does it appear that complainant appeared at axxy stage of the proceeding for the purpose of interposing objections or defense. The validity of official acts and the regularity of official proceedings are always to be
Municipal corporations possess no inherent power to levy assessments for local improvements. There was no such power at the common law. In order therefore to justify such assessments, it is necessary that authority for them be found in legislative act; the presumption being that, in the absence of legislative grant providing for a special source of revenue for public improvements, funds for that purpose are to be raised by an exercise of the power of general taxation. Local assessments are in derogation of the common-law rights of attingent property owners, and for that reason it is colmmonly ;said. that the statutory authority under which they are levied is to be strictly construed and followed. It is said that the mode of procedure prescribed by the statute becomes a measure of the power itself, and that any substantial deviation therefrom will render the assessment ineffectual to fasten a lien upon the property affected by the improvement. These considerations, however, do not prevent the application of well-settled- rules of statutory construction, and the
So far as concerns any question raised on this appeal, the Legislature in providing a method of local assessments needed to consult only two constitutional provisions. The one relates to due process and requires that the owner of the property against which an assessment is proposed shall have reasonable notice and a hearing — shall have his day in court — the other forbids that any city, town, or municipality shall make any as
The statute discloses a ¡scheme carefully devised (though its provisions are not stated at all points in logical sequence), and having in view the purpose to conclude the property owner unless he appears to contest the final assessment, and this, We think, with due observance of constitutional guaranties. As has been noted already, complainant does not aver lack-of due notice to appear and defend against the- final assessment. Nor does he deny that he allowed the assessment to go against him by default. True, he-complains that the notice, required by the statute (sections 1362, 1363) as preliminary to action on the part, of the city council confirming the original ordinance or resolution by which it was finally determined to proceed with the work, was not given as required by law. Without impairing the argument for our position, we may- assume that it was not given at all, for that default might have been brought to the attention of tlie governing board of the city of Birmingham at the hearing fixed for the final determination of the assessment. As for the right to confirm, amend, modify, or rescind the original ordinance or resolution, the first hearing provided for by the statute is not jurisdictional, but advisory only. The statute does not contemplate at this point that any abjections or protests going to the validity of the ultimate assessment shall be determined. It affords to property owners in general an opportunity to present in advance such objections as they may deem proper to the policy of constructing the work at all or-in the manner proposed. The city council 'has a perfect right to proceed notwithstanding such protests as may then
As a matter of constitutional right, the Legislature might have left the question whether the improvement should be made to the discretion of the city council without preliminary notice to the property owners. The theory of the local assessment, or betterment tax as it is frequently called, is that the individual property owner receives in increased value as much as lie contributes. .
The only considerations upon which the property owner has a constitutional right to insist are these: That the improvement be undertaken by legislative authority, without which the attempt to assess its cost against property would be a usurpation of the power to tax, and that his property shall be benefitted to an extent equal to the amount assessed against it. Whether his property has been so benefited is essentially a judicial question upon which the property owner is entitled to notice and a hearing. — Barber Asphalt Co. v. Edgerton, 125 Ind. 455, 25 N. E. 436. Said the Indiana court in another case: “It is essential to the public good that the necessity for street'and other improvements, and the cost of making them, and such other proceedings as are necessary to insure the prompt execution of the work, be determined and taken in a com
The preliminary notice, and all those other steps preliminary to the notice of the assessment and the assessment itself, about the absence or perversion of which the bill complains, are provisions of legislative grace. Being writen in the statute, they must be observed or the property owner may at the final hearing-have the benefit of the omission of such of them as may be considered essential where there has been no waiver. But their omission may be waived. “A party may waive a rule of 1 aw or a statute, or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved, and, having once done so, he cannot subsequently invoke its protection.” — Sentenis v. Ladew, 140 N. Y. 463, 35 N. E. 650, 37 Am. St. Rep. 569; Martin v. State, 62 Ala. 240; State v. McFarland, 121 Ala. 45, 25 South. 625; Stone v. State, 160 Ala. 94, 49 South. 823, 136 Am. St. Rep. 69; Noel v. State, 161 Ala. 25, 49 South. 824; Wolff v. McGaugh, 175 Ala. 299, 57 South. 754. Now the statute, after providing for the preparation of the assessment roll, by which for the first time the expense of the improvement is spread over the property, the proceeding is individualized and given the character of a judicial proceeding to fasten a lien for a specific amount upon a specific parcel of property, and, after providing for due process by requiring notice of the
The constitutional sufficiency of the notice of the final assessment prescribed by the statute is not questioned. It was approved in Decatur v. Brock, 170 Ala. 149, 54 South. 209.
Our case of Woodlawn v. Durham, 162 Ala. 565, 50 South. 356, sustains the principle of our conclusion in the instant case. It seems to go much further, for in the charter of Woodlawn there was no express provision for an estoppel. The case holds that, in an action by the city by independent bill in equity to enforce the lien of an assessment levied under that charter, the property owner, after failing to appear upon due notice before the council sitting for the confirmation of assessments, cannot in defense of the action litigate the questions whether the improvement was well done, or done in accordance with the specifications and contract between the city and the contractors, or in accordance with the charter and ordinance provisions, or that the work done was of no benefit to his property. We have however, felt that it was proper to go into the question more at length because of the different provisions of the Code, and because it is stated at the bar, and no doubt correctly, that there was in that case no brief or argument for the appellee; at any rate, the opinion in that case was not written to meet the argument now advanced by appellee.
Appellee lays stress upon Owens v. Marion, 127 Iowa, 469, 103 N. W. 381, some other cases decided by the Supreme Court of Iowa, on Auditor General v. Calkins, 136 Mich. 1, 98 N. W. 742, and some other cases from other states which do not seem to require special notice. In the first-named case the Code of Iowa is quoted as
Many cases are cited pro and con. They have not been of much service, for, Avhile involving questions as to the effect of irregularities and omissions in procedure upon the validity of local assessments, they are concerned about different statutes and approach them from a different vieAvpoint, assessing councils and boards being considered as tribunals of extraordinary and limited jurisdiction, as in general they unquestionably are, and were properly so considered in most of the cases; there seldom being any occasion for the courts Avhile considering statutes prescribing a preliminary procedure to refer to the fact that the Legislature, in the due observance of constitutional guaranties,
In tlie appellee’s bill and brief there is reference to the jurisdiction of chancery to remove clouds upon title and to compel the determination of undisputed claims to land as giving equity to his bill. On the fact stated in the bill that the improvement was undertaken under the authority of the city council of Graymont and subsequently carried to completion under the authority, however improperly exercised, of the board of commissioners of the city of Birmingham, and on the other facts not denied in the bill, and for that reason assumed against the appellee, that appellee had due notice of the hearing for final assessment and an op
Our opinion is that the general demurrer to appellee’s bill should have been sustained.
Reversed and remanded.
Dissenting Opinion
(dissenting.)—The powers of a municipal corporation to assess property to pay for the improvement of streets being entirely statutory, it must be true, in accordance with well-recognized principles of law, that, when the statute lays down certain prerequisites to the exercise of the power by the municipal authorities, these prerequisites must be jurisdictional,
Section 1361 of the Code of 1907 requires, as a prerequisite, that the council shall adopt an ordinance or resolution “describing the nature and extent of the work, the general character of the materials to be used, and the location and terminal points thereof, and the streets, avenues, alleys, or other highways, or parts thereof, and shall direct that full details, drawings, plans,” etc., be made, etc. - Section 1363 requires the publication of said ordinance, and section 1364 provides that at the meeting all persons whose property may be affected may appear and object or protest against said improvement, the material to be used, etc., and that, if a majority of the abutting owners object to the proposed improvement, “the improvement shall not take place unless ordered by a two-thirds vote of those elected to the council.” I hold that the adoption of such an ordinance or resolution, and the notice giving the property owners the opportunity to appear and object, are jurisdictional, and without them the entire proceedings are void.
After providing for making out the assessment roll, after the work has been done, giving notice that such roll has been made out, fixing the time for hearing objections, giving notice, etc. (sections 1375-1380), it is provided by section 1381 that the owners may appear “and file * * * any objections or defense to the proposed assessment against said property or to-the amount thereof, and persons who do not file objections in writing or protests against such assessment shall be held to have consented to the same.” This evidently refers only to the “assessment”; that is, to the correctness of it, whether it is properly proportioned among
This construction of the statutes is not only consonant with recognized principles of construction, but is shown to be correct by the provisions of the statute in regard to appeals to the circuit court.
Section 1393 provides that the introduction of the transcript of proceedings “shall be prima facie evidence of the correctness of such assessment,’7 and that the property and persons are justly indebted, etc. Section 1395 provides that, if by reason of any technical irregularity or defect in the proceedings “the assessment has not been properly made,77 the court may nevertheless make the expenses incurred a charge on the lot, under certain conditions, thus showing clearly that all of these later sections refer only to the proceedings for the assessment and not to the jurisdictional facts.
For these reasons I dissent from the opinion.